OPEN LETTER TO THE EDITOR

20 July 2001

We are a group of senior family lawyers who practise throughout New Zealand. We view with concern the recent attacks upon the Family Court and the Judges appointed to the Court, much of it ill-founded and ill-informed.

On 1 October this year the Family Court will have been in existence as a specialist jurisdiction for 20 years. In that time it has established an enviable reputation, not only in New Zealand but internationally. It deals with wide and diverse areas of jurisdiction. It is perhaps significant that it is in respect of only custody and access of children that criticism is leveled.

Each of us has had lengthy experience acting as counsel for men, women and children in the resolution of custody and access disputes before the Court. We are members of a specialist bar who of necessity work closely with psychologists, psychiatrists and other professionals in our day-to-day working lives.

A Family Court Judge is appointed after the most rigorous investigation. It is not our experience that those appointed have preconceived ideas or biases that interfere with their decision-making. Of course there will be occasions when we, as counsel, feel aggrieved about the nature of a decision that we may feel is wrong. That falls far short of a suggestion that the presiding Judge was improperly motivated.

The expertise of the Court’s Judges has been well recognised in several judgments of the Court of Appeal and the High Court and led directly to a change to the manner of hearing appeals two years ago. Previously the High Court was required to rehear the case in its entirety. Now an appeal proceeds on the conventional basis of a party needing to demonstrate that the Judge was wrong, or based his or her decision on a wrong legal principle. On many occasions an appeal from the Family Court is heard by a Court of at least two Judges. This in itself is an important constitutional safeguard for those who feel aggrieved by the Family Court process or decision. It would be interesting to know how many of those so vociferously complaining exercised their right of appeal to the High Court - statistics would suggest there are few.

We are very concerned for those who may need to turn to the Family Court for support and assistance. We are aware of some people who may have been seriously distressed by what we view as mischievous and misleading statements being published in the media. The facts are these. Last year the Court dealt with 11,300 cases involving the care of children after parents separated. Of that number only 1,150 remained unresolved after the Court had guided parties through a careful counselling and mediation process. Of the 1,150 remaining, a number would have settled before the Court was required to adjudicate.

The Court is criticised as being "secret", thereby by implication hiding some sinister truth from the public. The accusation is a useful obsession for some. The truth is that we are not practising in a criminal court. We practise in a court which regards it as a priority to protect the vulnerable - and none of us feel we should have to defend that principle. The truth also is that a large number of practitioners and Family Court Judges support a liberalising of the rules relating to publication, and we are working towards that. The issue is complicated, however, by a number of factors and deserves careful, not knee-jerk, reaction. In particular the interests of children, whose welfare is the first and paramount consideration of the Court, must be taken into account.

Groups representing the views of some fathers loudly protest that their place in the family is not appropriately recognised by the Court. In the past it has been a commonly expressed concern that not enough fathers take an active role in their children's lives. We are therefore delighted that the very important role of fathers is being highlighted. We cannot, however, agree with many of the unmeasured and melodramatic statements which amount to misrepresentation and which serve no useful purpose.

In every custody/access case which comes before the Family Court there is scope for consideration of a shared parenting regime. There is nothing particularly new about the concept. Many considerations, however, lead the Court to make an educated decision as to the best arrangement for the child - not the best arrangement for the adults. These considerations include the wishes of the child, the views of the child's own lawyer, the child psychologist, attachment and bonding issues, the availability of each parent at important times, the age and ability of the child to cope with moving from home to home, the child’s current arrangements and so on. None of these are gender issues - they are issues involving consideration of expert opinion and fact which focus on the child's needs.

For some critics the easiest form of attack is personal, and so attention has been turned to individual Judges. Judges have a difficult and, at times, thankless task. They are men and women chosen for their expertise in what is now a very specialised field of work. Each of us would recall cases where we may have thought a Judge "got it wrong", but it would be difficult to point to a decision which we could conclude was founded on gender bias. As family court lawyers we would never tolerate that approach. The criticism is unfair and self-serving.

We remain positive about a unique court which we believe is attuned to the best interests of children. Perhaps therein lies the rub - in the business of the Family Court we are not dealing with commercial contracts, traffic offences, or business deals gone wrong - we are dealing with human dynamics and interpersonal relations at a time of high emotional intensity. To those people the Court freely offers counselling assistance - for some, pain is most easily relieved by criticising the institution which happens to be at the end of the line.

Anita Chan (Family Law Section Chair)(Dunedin)
Simon Maude (Deputy Chair)(Wellington)
David Burns (Auckland)
Fiona Mackenzie (Tauranga)
Mary O’Dwyer (Christchurch)
Maureen Southwick (Auckland)
Gray Cameron (Auckland)
Pete O’Donnell (Christchurch)
Fenella Devlin (Wanganui)
Anna Skellern (Auckland)
Norman Elliott (Auckland)
Deborah Hollings (Auckland)
Stephen Coyle (Tauranga)
Stephen McCarthy (Auckland)
Simon Mitchell (Auckland)
Rosemary Riddell (Dunedin)
Adrienne Edwards (Christchurch)
James Wildling (Christchurch)
Dorothy Bogers (Hamilton)
Penny Clothier (Palmerston North)
Kathryn Buchanan (Dunedin)
La-Verne King (Manakau City)
Isabel Mitchell (Christchurch)

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